the registered trustees of the evangelical lutheran in tanzania karagwe diocese v jovian john tinuga 2023 tzhc 23302 14 december 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF BUKOBA AT BUKOBA LABOUR REVISION NO. 3 OF 2023 (Arising from CMA/KAG/BUK/73/2022) THE REGISTERED TRUSTEES OF THE EVANGELICAL LUTHERAN IN TANZANIA-KARAGWE DIOCESE.............. . APPLICANT VERSUS JOVIAN JOHN TINUGA.............. ........ ................... ...............RESPONDENT JUDGMENT 4th arid 14th December, 2023 BANZI, J,: The respondent, Jovian John Tinuga was employed by the applicant on 8th July, 2013 in a position of Human Resources Officer. On 11th October, 2022, he was terminated from his employment on a ground of misconduct. In the termination letter, he was ordered to hand over the Diocese's properties within 36 hours and vacate the office premises. He was also offered a one month's salary in lieu of notice. Aggrieved with his termination, he referred the dispute for unfair termination to the Commission for Mediation and Arbitration ("CM A") at Bukoba. He claimed to be paid Tshs.5,040,000/- being 12 months' salaries for unfair termination, Tshs.8,400,000/= as damages for less payment upon Page 1 of 10 termination, severance pay of Tshs.918,320/= and NSSF benefits. He also claimed to be issued with certificate of service and other order as the Commission may deem fit to grant. Fortunately, when the matter was still at mediation stage, on 25th January, 2023, the dispute was finally determined by way of settlement agreement. Through certificate of settlement (CMA F.6), it was agreed that and I quote: "Imekubaliwa Jovin arudi kazini b/la mashaiti yoyote. Ataanza kazi mara moja na kulipwa mshahara wa mwezi kama kawaida." Surprisingly, on 27th February, 2023, the respondent returned back to the CMA with a letter of complaint contending that, the applicant breached settlement agreement. Briefly, he complained to be transferred to another duty station, Ibamba dispensary with new position as environmental attendant dealing with cleanliness such as, keeping garden and cleaning the environment. With such complaint letter, the Arbitrator summoned parties and when they appeared before him on 3rd March, 2023, the respondent began to explained what had transpired after he was reinstated. On 11th March, 2023, the respondent wrote another letter to the CMA requesting for arbitral award arising from certificate of settlement dated 25th January, 2023. Apart from that, he raised several new claims which were not part of certificate of settlement. Page 2 of 10 The Arbitrator ordered the applicant to reply in writing and on 28th April, 2023, he issued arbitral award in favour of the respondent pursuant to rule 17 (1) (2) of the Labour Institutions (Mediation and Arbitration Guidelines) Rules, 2007 ("GN No. 67 of 2007"). He further ordered the applicant to pay the respondent Tshs.4,980,000/= as compensation of twelve months' salaries; Tshs.2,905,000/= being salaries from November, 2022 to April, 2023; Tshs.l,117,300/= as gratuity for ten years; Tshs.360,000/= as responsibility allowance; Tshs.980,000/= being subsistence allowance for 14 days; Tshs.2,500,000/= as repatriation allowance from Ibamba dispensary to Kishao Karagwe and Tshs.l,660,000/= as subsistence allowance for the period he was placed at Ibamba dispensary under intolerable environment which made a total of Tshs. 14,502,300/=. Dissatisfied with the arbitral award, the applicant filed this revision before this Court. During the hearing, the applicant enjoyed the services of Mr. Jackson Mchunguzi Mustafa, learned counsel, whereas, the respondent appeared in person unrepresented. At paragraph 12 of the affidavit, the applicant raised a total of six grounds which are reproduced as hereunder; Page 3 of 10 (i) Whether it was proper for Commission to entertain the matter which was already determined; (ii) Whether the mediator can exercise the roie of arbitrator in the same proceeding; (Hi) Whether the award made by the Mediator/Arbitrator was illogical, irrational and unlawful; (iv) Whether the mediator/arbitratpr can issue an award without according the parties with the right to be heard; (v) Whether the commission for mediation and arbitration had jurisdiction to enforce its own decision; (vi) Whether the commission had powers to deal with extraneous matters raised after mediation. After a thorough scrutiny of grounds for revision in the light of the record of the CMA, .1 find it prudent to begin with the first and fifth grounds which in the view of this Court, suffice to dispose of the revision. It was the contention of Mr. Mustafa that, the labour dispute number CMA/KAG/BUK/73/2022 was finally determined on 25th January, 2023 when parties signed the certificate of settlement. Thus, the act of re-opening and continuing to entertain the dispute and deliver the award, the Mediator/Arbitrator became functus officio. To support his argument, he cited the cases of Bibi Kisoko Medard v. Minister for Lands Housing and Urban Developments and Another [1983] TLR 250, Bibi Chiku Page 4 of 10 Matessa v. Board of Trustees of National Security Fund (NSSF) [2022] TZHCLD 1120 TanzLII and YARA Tanzania Limited v. DB Shapriya and Co. Limited [2023] TZCA 17763 TanzLII. It was also his contention that, the Arbitrator misconceived rule 17 (1) of GN No. 67 of 2007 which allows the CMA to make any settlement agreement an arbitral award. According to him, in the matter at hand, parties signed certificate of settlement (CMA F.6) and not settlement agreement (CMA.F.7) and hence, whatever was decided in the arbitral award was not based on the agreement signed between the applicant and the respondent. He added that, the award was illegal because it was based on the allegation and not on the evidence which ought to be taken under oath as required under rule 25 (1) of GN No. 67 of 2007. Basing on those flaws, he urged this Court to grant the reliefs sought in chamber application and notice of application. In his reply, the respondent submitted extensively on the issue of representation while challenging the representation of Mr. Mustafa for the applicant which, in my considered view, has no relevance to the fact in issue. Besides, I don't see any flaw in his representation because he duly filed the notice of representation as required under section 56 of the Labour Institutions Act [Cap. 300 R.E. 2019] and rule 43 (1) of the Labour Court Rules, 2007. Apart from that, it was his submission that, the CMA did not Page 5 of 10 determine the matter but rather parties themselves determined it by signing agreement through certificate of settlement in respect of his reinstatement unconditionally. Moreover, he explained in details on how he was mistreated and humiliated after being reinstated to the extent of returning back to CMA and raised his complaint. He added that, the CMA has powers under rule 17 to make the agreement to be decree/award so that it can be executed by Labour Court. He did not find any illegality committed by the Arbitrator and thus, he prayed for this application to be dismissed and the arbitral award to be upheld. In his rejoinder Mr. Mustafa responded that, as this application aims at determining the correctness, legality or propriety of the proceedings, orders and the award given, he urged this Court to pass through the submissions presented and grant the prayers sought. He insisted that, it was improper for the Mediator to reopen the dispute that was already settled and act as Arbitrator to receive other complaints and deliver the award without adhering to the procedures governing the conduct of dispute resolutions before the CMA. It was his argument that, the award reached by the CMA was illogical, irrational and illegal which has to be revised and set aside for containing unrealistic costs and reliefs which the respondent is not entitled to. Page 6 of 10 Having carefully considered the submissions of both sides, the main issue before this Court for determination is whether it was proper for CMA to reopen the dispute that had already been finally determined by settlement. It is important to underscore that, in matters of judicial or quasi-judicial proceedings, once a decision has been reached and made known to the parties, the adjudicating court or tribunal becomes functus officio. See the case of Bibi Kisoko Medard v. Minister for Lands Housing and Urban Developments and Another {supra}. In the case of YARA Tanzania Limited v. DB Shapriya and Co. Limited {supra} it was stated that: "..for the doctrine of functus officio to apply, the Court must have fulfilled its function by determining the question In dispute, and therefore, subject to the powers of review and correction of errors, of no further force or authority on the questioned determined." Reverting to the matter at hand, it is undisputed that, the labour dispute number CMA/KAG/BUK/73/2022 between the respondent and the applicant was finally determined on 25th January, 2023 by way of settlement after parties signed certificate of settlement (CMA F. 6). Through the said settlement, parties agreed that and I quote: Page 7 of10 "Imekubaiiwa Jovin arudi kazini bite masharti yoyote. Ataanza kazi mara moja na kulipwa mshahara wa mwezi kama kawaida." Thus, by signing the certificate of settlement, the dispute between the respondent and applicant was finally determined. As intimated above, on 27th February, 2023, the respondent returned back to the CMA with allegations that the applicant breached the settlement agreement. After receiving such complaint, the Arbitrator reopened the dispute by summoning parties who appeared before him and made their submissions. It is obvious that, by reopening the dispute which had already been determined though settlement, the Arbitrator became functus officio. Furthermore, on 11th March, 2023, the respondent wrote another letter to the CMA with a request for arbitral award arising from certificate of settlement dated 25th January, 2023. In justifying the award in question with total amount of Tshs.l4,502,300/=, the Arbitrator cited the provisions of rule 17 (1) (2) of GN No. 67 of 2007. For ease of reference, the rule is reproduced as hereunder: "17(1) The Commission may, by any agreement between the parties or on application by a party, make any settlement agreement in respect of any dispute that has been referred to the Commission an arbitration award. Page 8 of10 (2) An arbitration award can be served and executed in the Labour Court as if it was a decree of a court of law. " What I gather from the extract above is that, the CMA is permitted to make any settlement agreement as arbitral award and the same can be executed as if it was the decree of the court of law. In other words, the arbitral award must arise from the settlement agreement and not otherwise. In the matter at hand, the Arbitrator misinterpreted the provision of the law by entertaining new matters which were not part of the settlement agreement and proceeded to make the arbitral award. That is to say, the arbitral award in question contained extraneous matters that were not in the settlement agreement. Obviously, the CMA had no jurisdiction to Issue the arbitral award outside the scope of settlement agreement. Had the respondent faced any hardship after being reinstated, he was supposed to request for the award pursuant to settlement agreement so that he can apply for execution before the High Court. Moreover, the CMA under rule 17 (1) of GN No. 67 of 2007 had jurisdiction to issue the arbitral award basing on the settlement agreement signed on 25th January, 2023 for the respondent to execute it before the High Court. By issuing the arbitral award containing new claims other than what parties had agreed in settlement agreement, the CMA acted without jurisdiction. Thus, whatever transpired from 3rd March 2023 to 28th April, 2023 is a nullity. Page 9 of 10 In that regard, it is the finding of this Court that, the first and fifth grounds have merit and suffice to dispose of this revision. As a result, I grant the revision and since the Arbitrator was functus officio and lacked jurisdiction to make arbitral award outside the settlement agreement, I have no choice than to nullify the proceedings from 3rd March, 2023 to the end and quash and set aside the subsequent decision and award dated 28th April, 2023. Each party shall bear its own costs. It is so ordered. I. K. BANZI JUDGE 14/12/2023 Delivered this 14th December, 2023 in the presence of Mr. Jackson Mchunguzi Mustafa, learned counsel for the applicant and in the absence of the respondent with notice. Right of appeal duly explained. I. K. BANZI JUDGE 14/12/2023 Page 10 of 10